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Good news, you're thinking. Your company's just been sued for sex discrimination, but your lawyer tells you that her discrimination claim stinks. You're almost certainly going to beat it. W00t!Squee!

Not so fast with your w00ts and your squees. As employment lawyers, we see this scenario
play out far too often. Company gets hit with a weak discrimination claim. Turns out something bad happened to the plaintiff after he or she complained about the bogus discrimination. Wa-bamm! Now the company's stuck defending a much stronger retaliatory-discrimination claim.

This happened the other day here in Boston. The state's Probation Department faced a sex-discrimination claim (among other things) from an assistant chief probation officer. The case went all the way to a jury trial, which is unusual (less then one percent of these cases try). The Suffolk County jury found in the Department's favor on the sex-discrimination claims, but ruled for the plaintiff in her retaliation claim. It awarded her $6,000 in compensatory damages, and … wait for it … half a million dollars in punitive damages. Plus, now she's entitled to her attorneys' fees.

Now to be fair, the Probation Department has been having a bad year as the subject of daily newspaper stories about corruption and patronage. (For The Boston Globe's extensive coverage, click here.) But the lesson is still an apt one. In this case, after the employee complained of sex discrimination, she was stripped of supervisory duties and reassigned to cover the front desk. In its defense, the Department said that her performance had declined. Maybe it had. But that's a weak defense in a retaliation claim. (For more coverage of the case, see Marcella Bombadieri's piece in the Globe.)

Employers: When you're facing a potential discrimination lawsuit, you have to be extra careful to avoid doing something that could end up giving the employee a much stronger retaliation claim. It's a delicate situation to be in, but the wrong actions by the employer can be just the thing that the plaintiff needs to end up with a windfall.

For tips on how to treat a complaining employee, tweet or direct-message me at @jayshep, or send me an

A recent study by Shepherd Law Group shows that noncompete litigation nationwide has continued to trend upward, despite a slowing economy and legislative attempts to curb noncompetes. The latest study shows that noncompete litigation has more than doubled since 1995, and has increased by 61 percent from 2004 to 2009.

Tracking noncompete litigation across the United States is difficult. Unlike in discrimination cases, there are no government agencies to track noncompete litigation. What is more, the various state and federal courts have no mechanism for keeping track of noncompete cases. To get around these problems, the Shepherd Law Group study analyzes judicial opinions published by state and federal courts around the country. This data gives some indication of trends in noncompete litigation over time.

To be sure, the data has limitations. First, since it's based solely on published court opinions, it substantially underreports the number of noncompete lawsuits filed. Many if not most noncompete cases never result in a judge's written decision, and trial-court decisions in many states don't always get picked up by LexisNexis, where this data was collected. Moreover, the number of cases for a given year changes over time, for reasons known only to Lexis. (Compare the data in this post with 2009's "Eight ways to lose a noncompete case" and 2007's "Are noncompetes the new Sarbanes-Oxley?.") The likely explanation is that there is a lag between the filing and the publishing of court decisions.

So while the actual number of published decisions in a given year may not be that useful, the trends are. And if you're wondering about this year, the data suggests that the trend continues. If you prorate the first eleven months of 2010 over the course of a full year (that is, multiply by twelve elevenths), you get an estimate of 965 cases, which is a five percent drop from 2009. But that number will certainly go up over time. I expect that when the dust settles on 2010, we'll see a slight increase over last year's numbers.

Bottom line: noncompete cases have surged over the past decade and a half, and are showing no signs of slowing down. If you're a company looking to guard against unfair competition, a company looking to hire employees who have noncompetes, or one of those employees with a noncompete, make sure you have a noncompete specialist available to help you.

What do you think? Are you seeing an increase in noncompete activity in your industry or practice? Sound off in the comments below.

Nice interview in today's Wall Street Journal with Jeff Smisek, the new CEO of United Continental Holdings. Smisek was previously the CEO of Continental Airlines, which is merging with United Airlines. The interview (sorry, it's behind Rupert's paywall) by the Journal's Susan Carey, focuses on the challenges he faces merging two huge companies in a moribund industry. Continental, which we've written approvingly about before (see "If you treat me with respect, I'll do more for you"), has a better reputation for employee satisfaction than United does, which is known for having disgruntled employees. United is much larger than Continental.

So what's Smisek's biggest challenge and solution for making this new behemoth work? Fixing the corporate culture:

I am going myself to focus very heavily on the culture. Culture is incredibly important in a service business. I can lecture about service and we can train about service, but the employee is not going to give good service unless the employee wants to. They want to give good service if they enjoy coming to work, trust their co-workers [and] are given the tools they need to do their jobs.

In discussing the turnaround at Continental, Smisek talks about paying attention to the so-called little things, like keeping the plane cabins clean. Not just because it was disrespectful to the customers, but because it was disrespectful to the flight crews, who spent much more time in them.

Over the next two weeks, I'll be flying more than 20,000 miles on United, so I'm hoping to see the early results.

What do you think? Have you seen examples in your workplace where focusing on employee gruntledness translates into improved customer service? Or is it just a lot of happy talk? Share your thoughts in the comments below.

Gruntled Employees began four years ago today, on September 28, 2006. To paraphrase Ronald Reagan, from his famous 1980 debate with then-President Jimmy Carter: "Are you more gruntled than you were four years ago?"

I know I am, thanks to you. Four years ago, I took a made-up word and a philosophy about employment and human resources and started this blog. Since that day, there have been 165,892 pageviews, many of them by people not my mother. I'm honored to have had a small slice of your time, and I'm honored by the hundreds of comments and thousands of tweets that have continued the conversation.

The first post was called "Radio Shack Deletes 400 Workers, Common Sense," a story about how the electronics retailer fired 400 employees by email. At the time, Radio Shack defended this Stupid Employer Trick as being necessary "improve its long-term competitive position in the marketplace." Since that infamous email, Radio Shack's annual revenue has dropped about 16 percent (or nearly a billion dollars), and its annual income has dropped about 24 percent. Nice work, guys. I doubt that workers at The Shack are more gruntled than they were four years ago.

Thanks again to all of you who read these posts on the website, by email, and by RSS. Who knows? Maybe four years from now it will be "Morning in America."

Or maybe our bosses aren't as bad as they used to be. This according to a scientific completely unscientific internet poll conducted by Monster.com. The job-board website surveyed 2,150 visitors to its site and asked questions about their feelings toward their supervisors. According to a press release, 41 percent reported that they would never quit a job because of their boss. Monster took this as reflecting "an increasing tolerance among Americans for 'nightmare' bosses." It then concluded that this change in attitudes — lo and behold — was because of the economy:

In sum, according to Monster’s August poll findings, current economic conditions and an uncertain job market have changed Americans’ perceptions of their supervisors. The perceptions of American workers will be interesting to monitor going forward, as the economy begins to turn around – particularly if workers adopt a more critical view of their bosses and the decisions they make.

Whatever. I'm not going to put any stock in an internet poll, especially one where the self-selected respondents are people looking for jobs. And the too-obvious blame-the-economy-for-everything deal is getting kind of old now. More importantly, managers should not let internet polls make them think for a second that they need to work at keeping their employees gruntled.

What do you think? Are you happier with your boss than you were two years ago? Why? Or why not? Did the economy cause the Patriots to lose to the Jets? I'm thinking so. Sound off in the comments below.

Tonight is the premiere of the 21st season of "Survivor," the CBS reality show that has been hugely successful. The show's been on for ten years (they do two seasons a year, unlike most shows), and even now draws 12 million viewers and ranks among the top 25 shows in ratings. To be sure, I'm the only person I actually know who still watches it (my wife gave up years ago). It's my TV guilty pleasure, and the only reality show I watch (I'm done with "Idol").

And for years, I've been telling people that it's very similar to practicing employment law.

Let me explain:

"Survivor" is incredibly formulaic. Every episode of every season (except the season finales) follow the same exact pattern: Two tribes of castaways in an exotic location bond and caper and plot and fight in their respective camps. Then the two tribes have a contest to try to win some minor comfort (the Reward Challenge). More bonding and capering and plotting and fighting, then another challenge (the Immunity Challenge) to figure out who is at risk for going home. The climax of each episode is the Tribal Council, which is even more ritualistic and formulaic. The losing tribe sits around a fire. The host, Emmy-winning Jeff Probst, goads the players into revealing their fears and suspicions and plans. Then the players cast ballots to vote someone off the island. Probst uses many of the same stock phrases every episode, like "The Tribe has spoken. It's time for you to go."

But despite the repetition over a complete decade and 273 episodes, there is still great drama. (OK, maybe not "great," but drama nevertheless.) It's never boring.

As in employment law.

I've been practicing employment law for 16 years this month. (Paging Molly Ringwald.) I work on the same kinds of cases day in and day out. Noncompetes, discrimination, wage claims, sexual harassment. The usual. Everything I do boils down to people not getting along at work. The lawsuits and agency claims are all basically the same. It's been many years since I've come across a case that was truly novel in any way. I use the same set phrases — "The Tribe has spoken. It's time for you to go. (OK, not really.) — in many of my conversations.

And yet there is still great drama. And it's never boring. To me, practicing employment law and helping companies have gruntled employees and easier workplaces is as interesting to me as it was 16 years ago.

And the reason for that is the same reason that "Survivor" is still interesting:

Because of the people. Every employment-law case or issue or problem, every "Survivor" episode or challenge or Tribal Council is different because of the human variable. It's the people who make it different every time. The different personalities of the players and employees. The different exotic locations, and their effects on the contestants. The different corporate cultures. The people always make it different, and thus interesting.

That's why I still love employment law. And that's why I still watch "Survivor." Wednesday nights at 8 ET on CBS.

What do you think? Is your practice like a particular TV show? Is your tax firm like "True Blood," or your family-law practice like "Glee"? Share your thoughts in the comments below.

The Red Sox can't manage to stay afloat in a tough division, but they can at least provide us with some useful management lessons.

Last night, veteran knuckleball pitcher Tim Wakefield started against the Tampa Bay Rays. Even though he gave up five runs (four of them earned), he qualified for the win by pitching five innings and having the Sox take the lead for good in the bottom of the fifth. Besides getting the win — only his fourth against ten losses — Wake accomplished a number of other things in the game. First, he became the oldest pitcher (at 44) in Red Sox history (spanning 110 years) to win a game for the team.

Once he got his tenth out in the fourth inning (thus reaching 130 innings for the season), he earned a half-million-dollar bump in his guaranteed salary (to $2 million) for 2011. (He also earned a $75,000 bonus for making his eighteenth start of the season.) So it's fair to say that the game was worth an extra $575,000 to Wakefield on top of the prorated portion of his $3.5 million salary for this season. And Wakefield could certainly look at it that way.

But the team should not conclude that this meaningless, late-season win cost it an extra $575,000. Yes, that was the marginal cost of the game. And last night's game was a spot start; the team could have had someone else pitch to avoid having Wakefield reach the starts and innings milestones that triggered the incentive pay.

But I'm certain that Sox management never considered a financial downside to having Wake pitch. By giving the pitcher various incentives to make more starts and pitch more innings, they encouraged a season-long performance that was plenty valuable to the team. The real cost to the team of last night's game was his pay for the total season divided by the 29 games he's appeared in — a number less than $140,000, which will decrease as he pitches more over the next few weeks.

Too often, employers worry about the marginal cost of someone reaching a threshold that triggers an incentive bonus. That's looking at it the wrong way. The right way is to consider the whole body of work, partially driven by the incentives.

Finally, last night's game marked another milestone for Tim Wakefield: it was his 179th win for the Red Sox. He's currently in 3rd place in team history, behind the immortal Cy Young and the tarnished Roger Clemens, who are tied for 1st at 192 wins. Wakefield has been open about wanting to reach 193 wins and become the winningest Red Sox pitcher of all time. It's a goal that drives him. The Red Sox know this, and I'm sure the team wants to help him achieve that goal.

Sometimes, goals can be even more important than incentive bonuses. A good employer helps its employees identify and reach for those goals.

Massachusetts has enacted a new law making it harder for employers to learn whether job applicants have criminal records. On August 6, Governor Deval Patrick signed the new Criminal Offender Records Information Act (CORI), which goes into effect in stages. The law makes Massachusetts the only state to prohibit most employers from asking about criminal records on job applications. Because with the unemployment rate as high as it's been in 20 years, this is what we want the state to focus on. Riiiiight.

All Massachusetts employers should now review their forms and procedures, and most will need to make changes to its application and recordkeeping processes. Here are five things you need to know:

You can’t ask applicants about criminal history (at first).
Until now, Massachusetts had fairly complicated rules on what you could and couldn’t ask applicants about any criminal past. The new law simplifies this: You can’t ask at all on the initial job application. The only exceptions are the rare circumstances where an employer legally can’t hire a convict, or where a convict would be presumptively disqualified by law. This restriction starts November 4, so you have less than two months to change your applications.

But you can ask after the initial job application.
The thinking here is that applicants with criminal histories won’t be automatically rejected without the employer first considering their qualifications. So you can still ask applicants if they had run-ins with the law — just not on that initial application, which is where most employers do it now. Of course, the new law makes it harder to verify what they tell you, because ...

More criminal records will be sealed earlier.
Under the new law, misdemeanor convictions will be sealed after only five years (after conviction or release from prison), and felony convictions after ten. (This provision doesn’t go into affect until May 4, 2012.) There are a few exceptions, like certain sex crimes, murder, and manslaughter, as well as subsequent convictions. So while the new law doesn’t allow applicants to lie about older convictions, employers are prevented from learning about them. Oh, wait. The old law already allowed criminals to lie about sealed convictions. If an ex-con has a sealed record, the law allows him or her to answer "no record" when applying for a job. Nice ...

And it will be harder to perform CORI checks.
Before doing a criminal-record check, an employer needs to verify the applicant’s identity and get his or her written authorization. If the employer then rejects the applicant based on the CORI results, it must first present the applicant with a copy of the results. If an employer conducts more than four CORI checks a year, it must develop a written CORI policy. Call your employment counsel for help with this policy if you think you’ll be doing multiple CORI checks.

There are also new recordkeeping requirements.
An employer has to keep applicants’ written authorizations for CORI checks for a year afterward. On the other hand, employers can’t keep the results of CORI checks beyond seven years after either the date the applicant was rejected or the date the employee terminates. And there are serious penalties for employers who improperly share the results with third parties. Under most circumstances, an employer cannot share these results at all.

Do your job applications comply?
If they look like most applications, they probably don't. You better start thinking about revising your employment application, as well as setting up a CORI policy (if you need one). You've got two months.

Think this is a good rule? Does the benefit of maybe preventing snap judgments by employers outweigh the impropriety of having the state censor otherwise-public information? Share your thoughts in the comments below.

Massachusetts law has long required employers to give workers access to their personnel files upon request. Which is fine, I guess. But a new change to the law now requires companies to notify employees about any potentially negative information added to their files. The amendment, which Gov. Deval Patrick signed into law on August 5, was tucked away in an “economic development” bill laden with higher-profile items like the recent sales-tax holiday. (To see how "probusiness" the law is, check out the Governor's press release from the signing. No mention of this provision, natch.) I have no particular opinion on the rest of the law. But this new personnel-records rule is going to lead to more employee lawsuits.

Here are five things you need to know:

Employers must tell workers about negative entries.
An employer now has to notify an employee when it puts into a personnel record any information that has been or may be used to negatively affect the worker’s job. This must be done within ten days. The law leaves unchanged an employee’s right to review or get a copy of their records within five days of requesting it. The only sop to employers is a limit on these requests to two a year. But that limit does not apply to the notice and review of negative entries.

There could be serious penalties for failing to comply.
The Attorney General’s Office is charged with enforcing the statute. The amendment does not change the existing penalty, which is a fine of between $500 and $2,500. It’s not yet clear to what extent the AG’s Office will seek to enforce the law. Besides these penalties, the new law could cause problems for employers during other employment litigation. If discovery reveals that the employer failed to comply, this could hurt the employer’s credibility.

Employers now face a dilemma about documentation.
On the one hand, we’re always warning clients to document employee issues as much as possible, just in case the issues go to litigation. On the other hand, the new law makes putting relatively innocuous information into a personnel file a much more-provocative event. Now a quiet, low-level note in a file carries the risk of unnecessarily agitating the employee. Agitated employees become disgruntled employees, and disgruntled employees sue. Under the new law, employers are damned if they do and damned if they don’t.

Many employers are required to keep personnel records.
If you employ 20 or more workers, then you’re required to keep in personnel records any written information about:

identity

job title and description

pay information

start date

job application

evaluations

warnings

probationary periods

waivers

termination notice

any documents on discipline

The law doesn’t benefit anyone (except lawyers).
The amendment snuck in below the radar, without any discussion in the employment-law community. It’s antiemployer, in that it places companies at increased risk for employee lawsuits. While advocates could possibly argue that workers benefit from increased “transparency,” we disagree. There are times when a prudent employer should make a minor note in a file without escalating it to a human-resources event. Employees shouldn’t need to be stressed out by every less-than-positive note made in a file. But the new law makes that unavoidable.

So what do you do now?
This is a tricky one. How to handle it depends on your current practice of handling personnel records as well as on your corporate culture. Talk with your employment counsel about devising a strategy for handling employee documentation in light of this new law.

Unfortunately, a paper trail could now take you down the wrong path.

What do you think? Is this going to be a problem for your workplace? Sound off in the comments below.

Hope you've enjoyed your Labor Day weekend. I've spent much of it completing a redesign of Gruntled Employees and its sister blog The Client Revolution. For those of you who read this blog through an RSS reader or email feed, you can take a look at it here.

Much of the changes are cosmetic. The basic blog design has been in place for nearly four years (later this month) here at Gruntled, and coming up on two years over at Revolution. Like many blog designs from 2006, these two became cluttered with too many sidebar elements, internal references, blogrolls, and widgets. Quite frankly, I'd gotten a little tired of looking at it all.

The redesign goes for a much more streamlined and clean look, similar to my firm's website (coincidentally last redesigned in 2006). This should allow the content to take on more prominence than before. Photos and other artwork will become more rare; I usually take too much time hunting down the "perfect" pic. Also, for the first time, the blogs now use real fonts, hosted by TypeKit. This one is called FF Dagny Web Pro, and it's a nice upgrade from Arial and Trebuchet.

Let me know what you think of the new look in the comments below, or give it a "Like" if you do. (Facebook doesn't seem to have a "Meh" button.)

Cosmetics aside, I'm also changing my approach to the posts themselves, trying to focus on more, shorter posts. My tendency is to post longish articles, which naturally take longer to write (and read). Shorter, targeted posts should also make it easier to write with greater frequency, something I've found difficult while running a law firm and raising two kids. Heck, even the ABA Journalgave me a hard time about infequent posts when it named this blog to its Top 100 list. Ouch.

I've started using the simple-but-brilliant Markdown language developed by my favorite Apple blogger, John Gruber of Daring Fireball. It allows me to write nearly everything on the iPad using SimpleNote.

I want to try to get more discussion going, too, so I've disabled the comment-moderation feature. I've heard that removing this barrier will let readers feel more free to share. Of course, I'll still be removing any spam or inappropriate comments, so it shouldn't become too much of a free-for-all.

Lastly, and most importantly, I'm aiming for a more-unified theme in my blogs, my firm's website, my law business, and my nascent consulting practice. They all share the same goal: to make clients' lives easier by reinventing the business of law. Ideally, making these minor social-media changes will help me do a better job of helping you.

OK, this has felt like a fairly self-indulgent post. If you've read to this point, thanks, and sorry. If you're one of the hardy souls who reads both blogs, please ignore the almost-identical post over at Client Revolution.

But do tell me what you think of the redesign. I value your feedback, and I thank you for continuing to join this conversation.